LEE H. ROSENTHAL, District Judge.
The attached Court's Instructions to the Jury at Conclusion of Trial was charged to the jury on even date and is to be entered in the record.
Members of the Jury:
You have now heard the evidence in the case. It is my duty to instruct you on the rules of law that you must follow and apply in arriving at your decision in the case. In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It is my duty to preside over the trial and to decide what testimony and evidence is relevant under the law for your consideration. It is also my duty at the end of the trial to explain to you the rules of law that you must follow and apply in arriving at your verdict.
First, I will give you some general instructions that apply in every case, for example, instructions about the burden of proof and how to judge the believability of witnesses. Then I will give you some specific instructions on the law that applies in this case. I will then give you final instructions explaining the procedures for you to follow in your deliberations.
You, as jurors, are the judges of the facts. But in determining what actually happened—that is, in reaching your decision as to the facts—it is your sworn duty to follow all of the rules of law as I explain them to you. You have no right to disregard, or give special attention to, any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences. It is also your duty to base your verdict solely on the evidence, without prejudice or sympathy. That was the promise you made and the oath you took before being accepted by the parties as jurors, and they have the right to expect nothing less.
The indictment, or formal charge, against a defendant is not evidence of guilt. Indeed, each defendant is presumed by the law to be innocent. Each defendant begins with a clean slate. The law does not require a defendant to prove his or her innocence or produce any evidence at all and no inference whatever may be drawn from the election of a defendant not to testify.
The prosecution has the burden of proving a defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit that defendant. While the prosecution's burden of proof is a strict or heavy burden, it is not necessary that the defendant's guilt be proved beyond all possible doubt. It is only required that the prosecution's proof exclude any "reasonable doubt" about the defendant's guilt.
A "reasonable doubt" is a doubt based on reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in making the most important decisions of your own affairs.
As I told you earlier, it is your duty to determine the facts. To do so, you must consider only the evidence presented during the trial. Evidence is the sworn testimony of the witnesses, including stipulations, and the exhibits. The questions, statements, objections, and arguments made by the lawyers are not evidence.
The function of the lawyers is to point out those things that are most helpful to their side of the case, and in so doing to call your attention to certain facts or inferences that might otherwise escape your notice. In the final analysis, however, it is your own recollection and interpretation of the evidence that controls in this case. What the lawyers say is not binding on you.
During the trial, I sustained objections to certain questions and exhibits. You must disregard those questions and exhibits entirely. Do not speculate as to what the witness would have said if permitted to answer the question or as to the contents of an exhibit. Certain testimony or other evidence was ordered removed from the record and you were instructed to disregard this evidence. Do not consider any testimony or other evidence that was removed from your consideration in reaching your decision. Your verdict must be based solely on the legally admissible evidence and testimony.
Also, do not assume from anything I did or said during the trial that I have any opinion about any of the issues in this case. Except for my instructions to you on the law, you should disregard anything I said during the trial in arriving at your own verdict.
In considering the evidence, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions that reason and common sense lead you to draw from the facts that have been established by the evidence.
Do not be concerned about whether the evidence is "direct evidence" or "circumstantial evidence." You should consider and weigh all of the evidence that was presented to you. "Direct evidence" is the testimony of one who asserts actual knowledge of a fact, such as an eyewitness. "Circumstantial evidence" is proof of a chain of events and circumstances indicating that something is or is not a fact. The law makes no distinction between the weight you may give to either direct or circumstantial evidence. But the law requires that you, after weighing all of the evidence, whether direct or circumstantial, be convinced of the guilt of the defendant beyond a reasonable doubt before you can find him or her guilty.
I remind you that it is your job to decide whether the prosecution has proved the guilt of one or both of the defendants beyond a reasonable doubt. In doing so, you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate.
You are the sole judges of the credibility or "believability" of each witness and the weight to be given the witness's testimony. An important part of your job as jurors will be making judgments about the testimony of the witnesses, including a defendant who testified in this case. You should decide whether you believe all, some part, or none of what each person had to say and how important that testimony was.
In making that decision, I suggest that you ask yourself a few questions. Did the witness impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome of the case? Did the witness have any relationship with either the prosecution or the defense? Did the witness seem to have a good memory? Did the witness clearly see or hear the things about which he testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness's testimony differ from the testimony of other witnesses? These are a few of the considerations that will help you determine the accuracy of what each witness said.
When a defendant testifies, that testimony is weighed and the defendant's credibility evaluated in the same way as that of any other witness. When a defendant does not testify, you may not consider that fact for any purpose in your deliberations.
Your job is to think about the testimony of each witness you have heard and decide how much you believe of what each witness had to say. In making up your mind and reaching a verdict, do not make any decisions simply because there were more witnesses on one side than on the other. Do not reach a conclusion on a particular point just because there were more witnesses testifying for one side on that point. You must always bear in mind that the law never imposes on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
The testimony of a witness may be discredited by showing that the witness testified falsely, or by evidence that at some other time, the witness said or did something, or failed to say or do something, which is inconsistent with the testimony the witness gave at this trial. Earlier statements of a witness were not admitted in evidence to prove that the contents of those statements are true. You may not consider the earlier statements to prove that the content of an earlier statement is true. Rather, you may use earlier statements only to determine whether they are consistent or inconsistent with the witness's trial testimony and therefore whether they affect that witness's credibility. If you believe that a witness has been discredited in this manner, it is your exclusive right to give that witness's testimony whatever weight you think it deserves.
You, the jury, must always examine and weigh the testimony of one who provides evidence against a defendant to obtain a potential benefit, including a potential personal advantage, with greater care and caution than the testimony of other witnesses. You must decide whether such a witness's testimony has been affected by these circumstances, by the witness's interest in the outcome of the case, by prejudice against one or both defendants, or by the benefit that the witness hopes or expects to receive. Such testimony must always be received with caution and weighed with great care. You may not convict any defendant on the unsupported testimony of such a witness, unless you believe that testimony beyond a reasonable doubt.
You will note that the indictment charges that the offenses were committed on or about a specified date. The prosecution does not have to prove that a crime was committed on the exact date, so long as the prosecution proves beyond a reasonable doubt that one or both defendants committed the crimes alleged in the indictment reasonably near the dates stated in the indictment.
Similarly, it does not matter if the indictment charges that certain transactions involved specific amounts of money and the evidence shows that it was a different amount. The law requires only a substantial similarity between the amounts alleged in the indictment and the amounts established by the evidence.
If a defendant is found guilty, it is my duty to decide what the punishment will be. You may not be concerned with punishment in any way. It may not enter your consideration or discussion.
If you have taken notes, they should be used only as memory aids. You should not give your notes precedence over your independent recollection of the evidence. If you have not taken notes, you should rely on your own independent recollection of the proceedings and you should not be unduly influenced by the notes of other jurors.
There are two defendants in this case: Mr. Abraham Moses Fisch and Ms. Monica Bertman. You are here to decide whether the prosecution has proved beyond a reasonable doubt that one or both of the defendants is guilty of the crimes charged. The defendants are not on trial for any act, conduct, or offense not alleged in the indictment. You are not called on to decide the guilt of any person not on trial as a defendant in this case, except as you are otherwise instructed.
Counts 1 and 2 charge both Mr. Fisch and Ms. Bertman. The evidence pertaining to each defendant must be considered separately and individually. The fact that you may find one defendant guilty or not guilty of any of the counts charged may not control your verdict as to the other counts charged as to the other defendant. The fact that you may find one defendant guilty or not guilty as to one of the counts may not control your verdict on the other count.
The remaining counts, Counts 3, 5 to 13, and 16 to 22, charge only Mr. Fisch. You must consider each count and the evidence pertaining to it separately. The fact that you may find Mr. Fisch guilty or not guilty as to one of these counts may not control your verdict as to any other count.
You have heard evidence of the acts of Mr. Fisch that may be similar to those charged in the indictment, but which were committed on other occasions. You must not consider any of this evidence in deciding if Mr. Fisch committed the acts charged in the indictment. However, you may consider this evidence for other, very limited, purposes. If you find beyond a reasonable doubt from other evidence in this case that this defendant did commit the acts charged in the indictment, then you may consider evidence of the similar acts allegedly committed on other occasions to determine whether this defendant had the state of mind or intent necessary to commit the crimes charged in the indictment or whether the defendant committed the acts for which he is on trial by accident or mistake. These are the limited purposes for which any evidence of similar acts may be considered. This evidence may not be considered as to Ms. Bertman.
Certain charts and summaries were shown to you solely as an aid to help explain the facts disclosed by evidence (testimony and exhibits) in the case. These charts and summaries are not admitted into evidence and are not proof of any facts. You should determine the facts from the evidence that is admitted.
Other charts and summaries were received into evidence. They are government exhibits 158, 159, 160, 162, 207, 208, and 513. You should give these exhibits only such weight as you think they deserve, based on all the evidence in the case.
Government exhibits 4, 126, 127, 130 through 138, 140, 141, 145 through 147, 414 through 416, and 507 have been identified as the typed transcripts of the oral conversations that can be heard on the recordings received in evidence as government exhibits 125 and 413. The transcripts also purport to identify the speakers engaged in such conversations. The transcripts are admitted into evidence for the limited and secondary purpose of aiding you in following the content of the conversations as you listen to the recordings, and also to aid you in identifying the speakers. You are instructed that whether the transcripts correctly or incorrectly reflect the content of the conversations or the identity of the speakers is entirely for you to determine based on your own evaluation of the testimony and evidence, and from your own examination of the transcripts in relation to your hearing of the recordings themselves as the primary evidence of their contents. If you should determine that any transcript is in any respect incorrect or unreliable, you should disregard it to that extent. It is what you hear on the recordings that is evidence, not the transcripts.
In considering Counts 1, 2, 3, 5, and 6, you are instructed that Section 5K1.1 of the United States Sentencing Guidelines and Rule 35(b) of the Federal Rules of Criminal Procedure govern how defendants in federal criminal cases may obtain reduced sentences for substantially assisting the government. Section 5K1.1 provides that if the government files a motion in a pending federal criminal case, stating that the defendant in that case has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court sentencing the defendant may reduce the sentence that would otherwise apply. The court decides whether and how much to reduce a sentence by evaluating the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance; evaluating the truthfulness, completeness, and reliability of any information or testimony the defendant provided, as well as the nature and extent of the assistance, any danger or risk of injury to the defendant or his family resulting from his assistance, and the timeliness of the assistance.
Rule 35(b) of the Federal Rules of Criminal Procedure provides that the government may file a motion under the rule within one year of sentencing, asking the sentencing court to reduce the sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person. The government may also make such a motion more than one year after sentencing if the defendant's substantial assistance involved: information not known to the defendant until one year or more after sentencing; information the defendant provided the government within one year of sentencing, that did not become useful to the government until more than one year after sentencing; or information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant. When acting under Rule 35(b), the court may reduce the sentence to a level below a minimum sentence established by statute.
In connection with Counts 1, 2, 3, 5, and 6 only as to Mr. Fisch, you have heard evidence relating to several of the Texas Disciplinary Rules of Professional Conduct. You are instructed that any violation of the Texas Disciplinary Rules of Professional Conduct is not in itself a criminal offense. Such a violation may subject an individual to civil penalties, but that is not the same thing as a crime. To show that Mr. Fisch committed the charged criminal offenses of obstructing justice, the prosecution must prove all the elements of the crimes charged, beyond a reasonable doubt. Evidence that may show noncompliance with a regulation or a rule does not necessarily show that Mr. Fisch had the necessary intent or state of mind to commit the crimes charged. Nor does such evidence meet the prosecution's burden of proving each element of the alleged crimes, beyond a reasonable doubt. Only if you find beyond a reasonable doubt from the other evidence in this case that Mr. Fisch did commit the acts charged in the indictment may you then consider the evidence of violations of the Texas Disciplinary Rules of Professional Conduct for a limited purpose: to determine whether he had the state of mind or intent necessary to commit the crimes charged in the indictment, or whether he committed the acts for which he is on trial by accident or mistake. These are the limited purposes for which evidence of violations of the disciplinary rules may be considered. This evidence may not be considered as to Ms. Bertman.
The word "knowingly," as used throughout these instructions, means that the act was done voluntarily and intentionally, not because of mistake or accident.
Besides the instruction on "knowingly" that applies to both defendants charged in Counts 1 and 2, and to Mr. Fisch as charged in Counts 3, 5, and 6, there is one other instruction that applies to the second and third elements of Counts 1, 2, 3, 5, and 6 only as they relate to Mr. Fisch. You are instructed that you may also find that Mr. Fisch had knowledge of a fact if you find that he deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of a defendant cannot be established merely by showing that he was negligent, careless, or foolish, his knowledge of a fact can be inferred if you find beyond a reasonable doubt that he deliberately blinded himself to the existence of that fact.
You are asked in Count 1 to decide whether the prosecution has proved beyond a reasonable doubt that either or both of the defendants, Mr. Abraham Moses Fisch and Ms. Monica Bertman, is guilty of the offense of conspiracy to obstruct justice.
Federal law, specifically, Title 18, United States Code, Section 371, makes it a crime for anyone to conspire with someone else to commit an offense against the laws of the United States.
A conspiracy is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of partnership in crime in which each member becomes the agent of every other member.
To determine whether Ms. Bertman or Mr. Fisch knowingly and intentionally conspired with each other or with others to commit obstruction of justice, as charged in the indictment, you must consider the elements of the crime of obstruction of justice. This is the crime alleged to be the object of the conspiracy. As to Count 1, the prosecution does not have to prove beyond a reasonable doubt that either of the defendants actually committed the crime of obstruction of justice. Instead, the prosecution's burden is to prove beyond a reasonable doubt that one or both of the defendants committed the crime of conspiracy to commit obstruction of justice. I am instructing you on the elements of obstruction of justice in Count 1 only to assist you in determining whether the prosecution has proved beyond a reasonable doubt each of the elements of conspiracy to commit that crime.
The elements of obstruction of justice with respect to Count 1 are:
It is not required that the defendant under consideration was successful in achieving the objective of subverting or undermining the due administration of justice. It is required that the defendant corruptly tried to do so in a manner that he or she knew was likely to obstruct the due administration of justice due to the natural and probable effect of the defendant's actions.
It is also not necessary that the defendant's only or even main purpose was to obstruct justice. The offense requires that it was reasonably foreseeable to the defendant under consideration that the natural and probable consequences of his or her actions would be to obstruct justice.
One may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. If the defendant understands the unlawful nature of a plan or scheme and knowingly and intentionally joins in that plan or scheme on one occasion, that is sufficient to convict him or her for conspiracy even though the defendant had not participated before and even though the defendant played only a minor part.
The prosecution need not prove that the alleged conspirators entered into any formal agreement, nor that they directly stated between themselves all the details of the scheme. Similarly, the prosecution need not prove that all of the details of the scheme alleged in the indictment were actually agreed on or carried out. Nor must it prove that all of the persons alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives.
Mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may have associated with each other and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy. A person who has no knowledge of a conspiracy, but who happens to act in a way that advances some purpose of a conspiracy, does not thereby become a conspirator.
You are asked in Count 2 to decide whether the prosecution has proven beyond a reasonable doubt that either or both of the defendants, Mr. Abraham Moses Fisch and Ms. Monica Bertman, is guilty of the offense of corruptly endeavoring to obstruct justice in the federal criminal prosecution then pending against Mr. Edilberto Portillo.
You are asked in Count 3 to decide whether the prosecution has proven beyond a reasonable doubt that Mr. Abraham Moses Fisch is guilty of the offense of corruptly endeavoring to obstruct justice in the federal criminal prosecution then pending against Mr. Hugo Barrera.
You are asked in Count 5 to decide whether the prosecution has proven beyond a reasonable doubt that Mr. Abraham Moses Fisch is guilty of the offense of corruptly endeavoring to obstruct justice in the federal criminal prosecution then pending against Mr. Umawa Oke Imo.
You are asked in Count 6 to decide whether the prosecution has proven beyond a reasonable doubt that Mr. Abraham Moses Fisch is guilty of the offense of corruptly endeavoring to obstruct justice in the federal criminal prosecution then pending against Mr. Clifford Ubani and Mr. Princewill Njoku.
For you to find either Mr. Fisch or Ms. Bertman guilty of Count 2, and for you to find Mr. Fisch guilty of Counts 3, 5, or 6, you must be convinced that the prosecution has proved each of the following beyond a reasonable doubt.
It is not necessary for the prosecution to prove that the defendant under consideration was successful in achieving the forbidden objective. The prosecution must prove, beyond a reasonable doubt, that the defendant corruptly tried to achieve it in a manner that he or she knew was likely to obstruct the due administration of justice due to the natural and probable effect of the defendant's actions.
It is also not necessary for the prosecution to prove that either or both defendants' only or even main purpose was to obstruct justice. The prosecution must prove, beyond a reasonable doubt, that it was reasonably foreseeable to the defendant under consideration that the natural and probable consequences of his or her actions would be to obstruct justice.
The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by him through the direction of another person as his agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.
Under Title 18, United States Code, Section 2, if another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of those other persons just as though the defendant had committed the acts or engaged in such conduct. Before a defendant may be held criminally responsible for the acts of others, it is necessary that the defendant deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime, unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.
In other words, you may not find Mr. Fisch or Ms. Bertman guilty of Count 2 or Mr. Fisch guilty of one or more of Counts 3, 5, or 6 on the basis of aiding and abetting unless you find beyond a reasonable doubt that some person or persons committed every element of the offense charged in that count, as defined in these instructions, and that the defendant under consideration voluntarily participated in their commission with the intent to violate the law.
For you to find either Mr. Fisch or Ms. Bertman guilty of Count 2 or Mr. Fisch guilty of one or more of Counts 3, 5, or 6 on the basis of aiding and abetting, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
"To participate in the criminal venture" means that the defendant engaged in some affirmative conduct designed to aid the venture.
The indictment alleges multiple methods in which Ms. Bertman, as to Count 2, and Mr. Fisch, as to Counts 2, 3, 5, and 6, committed the crime of corruptly endeavoring to obstruct justice. The prosecution does not have to prove all of them. The prosecution must prove beyond a reasonable doubt that the defendant under consideration used one of those methods with the corrupt intent to obstruct, or endeavor to obstruct, the due administration of justice in a pending criminal proceeding. You must all agree on which method, if any, the defendant under consideration used.
You are asked in Count 7 to decide whether the prosecution has proven beyond a reasonable doubt that Mr. Abraham Moses Fisch is guilty of the offense of conspiracy to commit money laundering by engaging in monetary transactions within the United States in money that 1) was worth more than $10,000; and 2) was derived from unlawful activity, specifically, obstruction of justice.
Federal law, specifically Title 18, United States Code, Section 1956(h), makes it a crime for anyone to conspire with someone else to commit money laundering.
As stated earlier, a conspiracy is an agreement between two or more persons to join together to accomplish some unlawful purpose, a kind of partnership in crime in which each member becomes the agent of every other member.
For you to find Mr. Fisch guilty of conspiracy to commit money laundering, you must be convinced that the prosecution has proved each of the following beyond a reasonable doubt:
To determine whether Mr. Fisch knowingly and intentionally conspired with others to commit money laundering, as charged in the indictment, you must consider the elements of the crime of money laundering. This is the crime alleged to be the object of the conspiracy. The prosecution does not have to prove beyond a reasonable doubt that Mr. Fisch actually committed this crime. Instead, the prosecution's burden is to prove beyond a reasonable doubt that this defendant committed the crime of conspiracy to commit money laundering. I am instructing you on the elements of this crime in Count 7 only to assist you in determining whether the prosecution has proved beyond a reasonable doubt each of the elements of conspiracy to commit that crime.
The elements of money laundering are that:
One may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. If Mr. Fisch understands the unlawful nature of a plan or scheme and knowingly and intentionally joins in that plan or scheme on one occasion, that is sufficient to convict him for conspiracy even though he had not participated before and even though he only played a minor part.
The prosecution need not prove that the alleged conspirators entered into any formal agreement, nor that they directly stated between themselves all the details of the scheme. Similarly, the prosecution need not prove that all of the details of the scheme alleged in the indictment were actually agreed upon or carried out. Nor must it prove that all of the persons alleged to have been members of the conspiracy were members, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives.
Mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may have associated with each other and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy but happens to act in a way that advances some purpose of a conspiracy does not thereby become a conspirator.
You are asked in Counts 8 through 13 and 16 to decide whether the prosecution has proven beyond a reasonable doubt that Mr. Abraham Moses Fisch is guilty of the offense of money laundering as to specific financial transactions. Each of these counts charges a different specific transaction.
It is a federal crime for anyone to engage in certain kinds of financial transactions commonly known as money laundering. Mr. Fisch can be found guilty of one or more of these counts only if the prosecution proves each of the following beyond a reasonable doubt:
The term "monetary transaction" means the deposit of funds or a monetary instrument in or to a financial institution in a way that affects interstate commerce.
"Interstate commerce" means commerce or travel between one state of the United States and another state. Commerce includes travel, trade, transportation, and communication.
The term "financial institution" includes an FDIC-insured bank, a commercial bank or trust company, a private banker, an agency or branch of a foreign bank in the United States, any credit union, or a thrift institution.
The term "proceeds" means any money derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of that activity.
It does not matter whether Mr. Fisch knew the precise nature of the crime or that the money came from committing obstruction of justice. But the prosecution must prove beyond a reasonable doubt that Mr. Fisch knew that the money involved in the transaction was obtained or derived from committing some crime.
It also does not matter whether all of the money involved was derived from the crime of obstructing justice or conspiring to do so. The prosecution only has to prove that $10,000 was obtained or derived from committing those crimes.
The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by him through the direction of another person as his agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.
Under Title 18, United States Code, Section 2, if another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of those other persons just as though the defendant had committed the acts or engaged in such conduct. Before a defendant may be held criminally responsible for the acts of others, it is necessary that the defendant deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime, unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.
In other words, you may not find Mr. Fisch guilty of one or more of Counts 8 through 13 or 16 on the basis of aiding and abetting unless you find beyond a reasonable doubt that some person or persons committed every element of the offense charged in that count, as defined in these instructions, and that Mr. Fisch voluntarily participated in their commission with the intent to violate the law. For you to find Mr. Fisch guilty of one or more of Counts 8 through 13 or 16 on the basis of aiding and abetting, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
"To participate in the criminal venture" means that the defendant engaged in some affirmative conduct designed to aid the venture.
You are asked in Counts 17 through 21 to decide whether the prosecution has proven beyond a reasonable doubt that Mr. Abraham Moses Fisch is guilty of the offense of failing to timely file income-tax returns when required by law for tax years 2006 through 2010. Count 17 asks about 2006; Count 18 about 2007; Count 19 about 2008; Count 20 about 2009; and Count 21 about 2010.
You are instructed that it is a federal crime to willfully fail to file a federal income-tax return when required to do so by the Internal Revenue laws or regulations. The word "willfully" as used in Counts 17 through 21, means a voluntary, intentional violation of a known legal duty.
Mr. Fisch can be found guilty of this crime only if the prosecution proves all of the following elements beyond a reasonable doubt:
A person is required to make a federal income-tax return for any tax year in which that person has gross income above a set threshold amount. The following chart sets out the gross income threshold and filing deadlines for each tax year at issue.
Income-tax return gross income thresholds and filing deadlines:
A defendant is required to file an income-tax return if his gross income for any calendar year is more than the threshold amount, even though the defendant may be entitled to deductions from that income and ultimately owe no taxes. The prosecution is not required to prove that taxes were due and unpaid, or that the defendant intended to evade or defeat paying taxes. The prosecution must prove, beyond a reasonable doubt, that the defendant willfully failed to file the tax return.
"Gross income" includes the following:
You are asked in Count 22 to decide whether the prosecution has proven beyond a reasonable doubt that Mr. Abraham Moses Fisch is guilty of the offense of corruptly endeavoring to impede the due administration of the Internal Revenue Code.
You are instructed that it is a federal crime to corruptly try to obstruct or impede the proper administration of the Internal Revenue laws.
For you to find Mr. Fisch guilty of Count 22, the prosecution must prove each of the following beyond a reasonable doubt.
To "try to obstruct or impede" is to consciously attempt to act, or to take some step to hinder, prevent, delay, or make more difficult the proper administration of the Internal Revenue laws.
The indictment alleges multiple methods in which the crime can be committed. The prosecution does not have to prove all of them. The prosecution must prove beyond a reasonable doubt that Mr. Fisch used one of those methods with the corrupt intent to obstruct or impede the proper administration of the Internal Revenue laws. You must all agree on which method, if any, Mr. Fisch corruptly used.
You are instructed in considering this count that the tax laws require an IRS Form 1099 to be filed for certain payments of non-employee compensation of more than $600. Every person engaged in a trade or business, including law, must file a Form 1099 with the IRS for each calendar year with respect to payments made during that year in the course of that trade or business to another person who is not an employee, for any form of compensation of $600 or more, for services performed for that trade or business.
The tax laws also require an IRS Form 8300 to be filed for certain cash payments received over $10,000. Any person who is engaged in a trade or business and who, in the course of that trade or business, receives more than $10,000 in cash in one transaction or related transactions, must file a Form 8300 with the IRS within 15 days after receiving the cash.
To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict must be unanimous on each count of the indictment. Your deliberations will be secret. You will never have to explain your verdict to anyone.
It is your duty to consult with one another and to deliberate in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own opinions and change your mind if convinced that you were wrong. But do not give up your honest beliefs as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
Remember at all times, you are judges—judges of the facts. Your duty is to decide whether the prosecution has proved either or both of the defendants guilty beyond a reasonable doubt.
When you go to the jury room, the first thing that you should do is select one of your number as your foreperson, who will help to guide your deliberations and will speak for you here in the courtroom.
A verdict form has been prepared for your convenience. The foreperson will write the unanimous answer of the jury in the space provided for each count of the indictment, either guilty or not guilty. At the conclusion of your deliberations, the foreperson should date and sign the verdict form. The foreperson will retain possession of the verdict form until the court asks for it.
If you need to communicate with me during your deliberations, the foreperson should write the message and give it to the court security officer. I will either reply in writing or bring you back into the court to answer your message.
Bear in mind that you are never to reveal to any person, not even to the court, how the jury stands, numerically or otherwise, on any count of the indictment, until after you have reached a unanimous verdict.
